Crystal Ball – August 2015

Welcome to Bartlett Law’s Crystal Ball. In this issue we spotlight recent legislative changes, some current trends in employment law, and we look ahead – what do we see for the future? We also have a new Top Tips feature.

CURRENT TRENDS

Angry outbursts and storming out

The following two cases provide useful reminders for employers and employees to keep your cool and not say things in the heat of the moment that may jeopardise the employment relationship, and to allow a cooling down period before acting on any comments made.

Ms Baker was employed as a van driver and had been issued with a warning because of a failure to attend a professional development session. Five days after the warning was issued, Ms Baker refused to assist the Centre Manager with filling in a form as she said it was not her job. The Centre Manager also asked Ms Baker to complete another form which Ms Baker accepted was her responsibility. However, in making the required alterations, she flicked the Centre Manager’s pen back at him rather than handing it to him. As it was near the end of her shift, the Centre Manager said “just leave” or words to that effect. Ms Baker started leaving the premises and the Centre Manager then said something to the effect of “if you leave then don’t bother coming back”.

Immediately after leaving the Centre, Ms Baker realised she had the van keys and rang the Centre to arrange to return them. She also rang Work and Income for advice about how to obtain a benefit. She contacted an employment law advocate who lodged a personal grievance with the Centre within a few hours. The Centre did not respond immediately to the grievance letter and there was no immediate denial of the alleged circumstances of the dismissal.

The Employment Relations Authority held that while the Centre Manager did not use the word “fired”, it was not unreasonable of Ms Baker to conclude that the remarks he made had the effect of terminating her employment.

The Authority noted that “employers do themselves a disservice by using language of the kind at issue here because even if their intention is not to bring the relationship to an end, language expressing a suggestion … that the employee ought not to come back is redolent of finality and it is difficult to see how any reasonable person would not think that a person in authority in the employer’s business …was effectively seeking to bring the relationship to an end”.

The Authority also commented on the fact that the employer did not immediately respond to the personal grievance claim or clarify its position when Ms Baker rang to say she had the van keys. The law is clear that even where an employer makes a mistake like the Centre Manager made, if that mistake is remedied urgently by clarifying the position, then the employee can no longer rely on the original mistake to raise a claim. If the Centre Manager had gone back to Ms Baker immediately and clarified the situation, the employer could have possibly prevented the termination, and it could have relied on the attempts to right the wrong in defending any subsequent grievance proceedings.

While the Authority found that Ms Baker’s dismissal was unjustified, remedies were reduced by 50% due to her contributory behaviour.

Ngaiwharau v the Porirua Whanau Centre Trust

Mr Ngaiwharau was employed as a social worker support person. The Employment Court Judge described him as a “vulnerable worker” as he had a chequered past with several criminal convictions and limited employment.

A year after Mr Ngaiwharau started employment he was seconded to another entity, South Pacific Academy, for an initial period of one week then extended to three weeks. Mr Ngaiwharau became confused about who he was working for and what his responsibilities were. Nothing was put in writing and he continued to be paid by the Trust.

The Academy told the Trust they did not know what Mr Ngaiwharau was doing, so the Trust called a meeting to discuss what was happening. The Trust told Mr Ngaiwharau he needed to decide where he wanted to work as the Trust couldn’t afford to keep paying him if he wasn’t working for it. The Trust said “we are going to have to let you go if you are not going to be working for us”. Not surprisingly, Mr Ngaiwharau became angry and stormed out of the meeting, swearing.

Mr Ngaiwharau came back the following day to get written confirmation of the decision but the Trust suggested to him it would be easier for both parties if he formally resigned. Mr Ngaiwharau never had any intention of leaving the Trust so was he was not prepared to resign. Mr Ngaiwharau did not return to work after this meeting and he was sent a text by the Trust asking when he was coming in to sort out his resignation letter. In the meantime Mr Ngaiwharau contacted a lawyer and raised a personal grievance. However, he was ultimately dismissed by the Trust for abandoning his employment.

The Court held that Mr Ngaiwharau was dismissed at the meeting and he did not abandon his employment. It was very clear that the Trust was dismissing him, which is why he became angry and swore, for which he apologised the following day.

The Court said the Trust failed to comply with its duty of good faith. The Court also noted that as Mr Ngaiwharau was a vulnerable employee, he needed to be treated “with kid gloves”. Instead, he had been called to a meeting without any prior indication about why it was taking place and was told the Trust would have to let him go. The Trust complained about Mr Ngaiwharau’s angry outburst but made no attempt to clarify the situation even after he had returned to the office to apologise for his behaviour. He was awarded lost remuneration and compensation for hurt and humiliation.

These cases are useful reminders for employees and employers alike to keep a cool head at all times. But if things do get heated, allow a cooling down period after which the employer should check with the employee about their intentions, and/or clarify any comments made by the employer’s representative in the heat of the moment – an apology can go a long way.

LEGISLATIVE CHANGES

Cyber Bullying

Bullying continues to dominate media headlines and be an issue in workplaces, schools and online. The controversial Harmful Digital Communications Bill was passed on 30 June 2015 with the aim of combatting cyber bullying. It came into force on 3 July 2015.

Under the new law, it will be an offence to send messages or post material to cause harm. Offences are punishable by up to three months in jail or a $2000 fine. There is a complaints mechanism for recipients of digital communications which are threatening, obscene, harmful, grossly offensive, or which denigrate race, religion, gender, sexual orientation, or disability. The new law includes digital communications which disclose sensitive personal facts, make false allegations, or are published in breach of confidence. Harmful digital communications could include emails, texts and social media posts and other forums on the internet.

Employers hosting online content, for example an intranet on which employees can post comments, could be prosecuted under the new law if they host online content that contains harmful digital communications. However, an organisation in these circumstances can only be taken to court if they:

have been notified by the complainant that the comments are in breach of the law; and

do not remove the comments within a reasonable time.

If you host online content where employees or other people can post comments, you need to act quickly if you receive a complaint of a harmful communication and if necessary, remove the harmful comment/s. If an employee posts a harmful communication that offends another employee and/or brings his/her employer’s organisation into disrepute, the employer may also need to commence a disciplinary investigation.

FUTURE PREDICTIONS

Health and Safety Reform Bill

The Transport and Industrial Relations Select Committee reported back on the Health and Safety Reform Bill on 24 July 2015, recommending a number of changes. The government said it is confident they have found a balance between safe work places for workers and unnecessary red tape for businesses. However, critics say the Bill has been watered down and a number of workers’ rights have been removed.

The key changes to the Bill include:

amending the coverage of volunteers so it is the same as existing law (ie, only volunteer workers in certain circumstances will be covered);

amending the definition of “officer” so that it only includes employees in very senior governance roles who are decision makers, and making it clear that officers must only do what is within their ability to influence and control when managing risks;

amending the definition of “workplace” to reflect that some areas are not a workplace all the time – a workplace is now defined as a place where work is being carried out or is “customarily” carried out for a business or undertaking and it includes any place a worker goes or is likely to be while at work. The definition is also amended to exclude areas of a farm when work is not being carried out there;

requiring PCBUs (person in control of a business or undertaking) with overlapping duties to consult, cooperate and coordinate with other PCBUs to ensure that the overlapping duties are discharged “to the extent they have the ability to influence and control the matter”;

exempting small workplaces in low risk sectors with less than twenty workers from the requirement to have a health and safety representative or committee when requested by employees. These workplaces can voluntarily have a health and safety representative and/or committee as part of their worker participation practices. New regulations will outline “low risk” sectors;

allowing all other businesses to decline the request for a health and safety committee if it is satisfied its existing worker participation practices are adequate under the new law;

requiring existing health and safety representatives to undergo training before they are allowed to issue an improvement notice or direct unsafe work to stop; and

limiting health and safety representatives’ powers to direct unsafe work to stop to the particular work group they represent.

Worksafe NZ has indicated the Bill is still on course to be passed in the second half of 2015. We recommend ensuring that your workplace has systems and processes in place to deal with the new laws when they come into effect. Officers and directors also need to ensure that they understand their “due diligence” obligations well in advance of the implementation of the new law.

We will provide more details about the Bill and employer and employee obligations in a separate newsletter so you can ensure you are ready well before the new law comes into force.

Zero Hours Contracts

The Minister for Workplace Relations and Safety has announced a range of measures to address employment arrangements labelled as “zero hours contracts”. The measures will appear in the amended Employment Standards Bill, due to be introduced to Parliament later this year.

The proposed changes are aimed at prohibiting unfair practices including:

employers not committing to any hours of work, but expecting employees to be available when required;

employers cancelling a shift without providing reasonable notice or compensation to the employee;

employers putting unreasonable restrictions on secondary employment of employees; and

employers making unreasonable deductions from employees’ wages.

We will update you on the Employment Standards Bill when it is introduced and can assist if you wish to make submissions on the Bill.

New Privacy Laws

Last year, the Government indicated it intends to repeal and replace the existing privacy law regime following a number of major privacy breaches over the past few years. A draft Privacy Bill is yet to be released but the likely areas of focus will be mandatory reporting of data breaches, new offences and increased fines, enhanced powers of the Privacy Commissioner and more guidance from the Office of the Privacy Commissioner about how to comply with privacy laws.

We will update you when the Bill is released. In the meantime, it is a good idea to check your data is secure and that employees are aware of their responsibilities and the processes for keeping information safe. We can help with you with all aspect of your privacy requirements and obligations.

TOP TIPS

Workplace Bullying

Workplace bullying continues to be a problem for employees and employers alike. Workplace bullying impacts on employees’ well-being and productivity and can be incredibly disruptive for all.

To assist, we set out some top tips in relation to workplace bullying:

1. Workplace bullying is “repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety” (from Worksafe New Zealand Best Practice Guidelines on Bullying).

2. Workplace Bullying is not:

A one-off incident of unreasonable behaviour

Constructive criticism or feedback about an employee’s work

A manager managing performance

A manager giving reasonable instructions for work to be carried out

Warning or disciplining employees for misconduct or poor performance

Requiring high performance standards.

3. Prevention is best:

Have in place clear and well communicated anti-bullying policies

Clearly outline the expected standards of workplace behaviour (preferably in a code of conduct)

Empower employees to address inappropriate behaviour as and when it arises to prevent it escalating.

4. Deal with complaints of bullying immediately:

The steps an employer takes will depend on the nature of the complaint – in instances of serious complaints the employer should usually conduct an investigation using an independent investigator (preferably external). Where the complaints are more low level, an informal approach may be more appropriate, for example, meeting with the alleged bully to discuss their alleged behaviour.

Failure to take appropriate action can result in claims against employers, up to a constructive dismissal claim if the employee decides they have no option but to resign as a result of the employer’s failure to deal with the issues.

5. Bullying is also workplace hazard – failure to address workplace bullying could be in breach of the Health and Safety in Employment Act 1993 for failing to provide a safe working environment.

Keep a diary of all relevant events (what was said, done, by the alleged bully and when, were there any witnesses?)

Where possible, ensure that you are not alone with the alleged bully

Be professional and courteous, even if you are not treated in that way

Consider seeking medical advice if your health starts to suffer.

We can assist with drafting codes of conduct, anti-bullying policies and procedures and conduct investigations into complaints of bullying. We can also assist employees with advice on how to deal with a bully, and how to respond to allegations of bullying.